Dembiec v. Town of Holderness

• Decision Date: 13 November 2014
• Docket Number: No. 2013–680,2013–680
• Citation: 105 A.3d 1051,167 N.H. 130
• Parties: Daryl DEMBIEC & a. v. TOWN OF HOLDERNESS
• Court: New Hampshire Supreme Court

167 N.H. 130

105 A.3d 1051

Daryl DEMBIEC & a.

v.TOWN OF HOLDERNESS

No. 2013–680

Supreme Court of New Hampshire.

Argued: May 15, 2014

Opinion Issued: November 13, 2014

Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Roy W. Tilsley and Christopher G. Aslin on the brief, and Mr. Tilsley orally), for the petitioners.

Mitchell Municipal Group, P.A., of Laconia (Walter L. Mitchell and Steven M. Whitley on the brief, and Mr. Mitchell orally), for the respondent.

BASSETT, J.

The petitioners, Daryl and Marcy Dembiec, appeal an order of the Superior Court (Vaughan , J.) dismissing their petition for equitable relief. The trial court ruled that it lacked jurisdiction to hear the petitioners' municipal estoppel claim because they had failed to exhaust their administrative remedies. The petitioners argue that the trial court had jurisdiction over their claim because they were not required to first raise it before the zoning board of adjustment. We reverse and remand.

In October 2011, the petitioners obtained a permit from the respondent, the Town of Holderness (Town), to construct a single family home. Before the permit was issued, the only structure on the property was a two-story boathouse with living quarters on the second floor. After obtaining the permit, the petitioners began construction of a single family home.

In April 2012, when construction of the home was substantially completed, the Town's compliance officer advised the petitioners that he would not issue a certificate of compliance for their new home because the existing boathouse contained a dwelling unit, and the applicable zoning ordinance allowed two dwellings on a lot only when they are in the same structure, such as in a duplex. The compliance officer informed the petitioners that, before he could issue a certificate of compliance, they would need either to obtain a variance or to remove "all plumbing" from the boathouse.

The petitioners then applied to the zoning board of adjustment for an equitable waiver from the ordinance. See RSA 674:33–a (2008). Two intervenors objected to the petitioners' request. The board originally granted the waiver, but on rehearing, denied it. The petitioners later sought a variance. The board denied their application. See RSA 674:33 (Supp.2012) (amended 2013). The petitioners aver, and the Town does not dispute, that they filed the instant petition with the court at the same time that they applied to the zoning board for a variance.

In their petition, the petitioners seek a declaration that, because the Town issued a building permit, it is "estopped from enforcing the one dwelling per unit lot provision of the zoning ordinance as applied to the Property." They also request an order requiring the Town to issue certificates of compliance and occupancy for the single family house. The Town moved to dismiss the petition, arguing that the trial court lacked jurisdiction because the petitioners had not appealed the decision of the compliance officer to the zoning board, and, therefore, had failed to exhaust their administrative remedies. The trial court dismissed the petition, and this appeal followed.

"Generally, in ruling upon a motion to dismiss, the trial court must determine whether the allegations contained in the [petitioners'] pleadings sufficiently establish a basis upon which relief may be granted." Atwater v. Town of Plainfield, 160 N.H. 503, 507, 8 A.3d 159 (2010) (quotation omitted). In making this determination, the court would normally accept all facts pleaded by the petitioners as true and view those facts in the light most favorable to them. Id. However, when the motion to dismiss raises certain defenses, the trial court must look beyond the petitioners' unsubstantiated allegations and determine, based upon the facts, whether the petitioners have sufficiently demonstrated their right to claim relief. Id. An assertion that a claim should be dismissed because the trial court lacks jurisdiction to hear the claim due to the petitioners' failure to exhaust their administrative remedies is one such defense. Id. "We will uphold a trial court's ruling in such a case unless its decision is not supported by the evidence or is legally erroneous." Id.

Ordinarily, parties must exhaust their administrative remedies before appealing to the courts. McNamara v. Hersh, 157 N.H. 72, 74, 945 A.2d 18 (2008). This rule is "based on the reasonable policies of encouraging the exercise of administrative expertise, preserving agency autonomy and promoting judicial efficiency." Id. (quotation omitted). However, "[w]e have recognized that the exhaustion of administrative remedies doctrine is flexible, and that exhaustion is not required under certain circumstances." Porter v. City of Manchester, 151 N.H. 30, 40, 849 A.2d 103 (2004). "In limited situations, it is unnecessary to burden local legislative bodies and zoning boards with the responsibility for rulings on subjects that are beyond their ordinary competence." McNamara, 157 N.H. at 74, 945 A.2d 18 (quotation and brackets omitted). "Thus, a petitioner need not exhaust administrative remedies and may bring a declaratory judgment action to challenge the decisions of municipal officers and boards when the action raises a question that is peculiarly suited to judicial rather than administrative treatment and no other adequate remedy is available." Id. (quotation omitted). "Judicial treatment may be particularly suitable when the constitutionality or validity of an ordinance is in question." Id.

We have decided many cases under this first exception to the exhaustion requirement; we have also recognized that exhaustion is not required "when further administrative action would be useless." Porter, 151 N.H. at 40, 849 A.2d 103 ; see DeVere v. State of N.H., 149 N.H. 674, 676–77, 827 A.2d 997 (2003) (holding that exhaustion would be futile, and, therefore, was not required when matter had been pending for more than five years without resolution, and State conceded that agency would have denied plaintiff's request). For instance, we have concluded that exhaustion is not required when "the agency at issue lacks authority to act." McNamara, 157 N.H. at 74, 945 A.2d 18 ; see Metzger v. Brentwood, 115 N.H. 287, 290, 343 A.2d 24 (1975) ; see also 3 E. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning § 55:13, at 55–27 to 55–29 (2012) (exhaustion is not required when administrative body lacks power to grant relief).

Here, we are persuaded that appealing the compliance officer's decision to the zoning board would have been useless because the zoning board lacked the authority to grant the requested relief. Thus, we conclude that exhaustion is not required.

At the outset, we note that some of our prior cases involve municipal estoppel claims that initially had been asserted at the zoning board. See Thomas v. Town of Hooksett, 153 N.H. 717, 721, 903 A.2d 963 (2006) ; see also Aranosian Oil Co. v. City of Portsmouth, 136 N.H. 57, 61, 612 A.2d 357 (1992). In those cases, however, we did not address whether the zoning board had jurisdiction to decide such claims. See Thomas, 153 N.H. at 721–25, 903 A.2d 963 ; Aranosian Oil Co., 136 N.H. at 61, 612 A.2d 357. We agree with the United States Supreme Court that "when questions of jurisdiction have been passed on in prior decisions sub silentio ," we are not "bound when a subsequent case finally brings the jurisdictional issue before us." Hagans v. Lavine, 415 U.S. 528, 535 n.5, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) ; see Duncan v. State, 166 N.H. 630, 640, 102 A.3d 913 (2014) (quoting Hagans, 415 U.S. at 535 n. 5, 94 S.Ct. 1372 ). Because the question of zoning board jurisdiction now before us was not raised in our prior cases and was not explicitly addressed, we are not bound by them. The instant case "finally brings the jurisdictional issue before us." Hagans, 415 U.S. at 535 n. 5, 94 S.Ct. 1372.

Whether a zoning board of adjustment has jurisdiction to decide a municipal estoppel claim is a question of law, which we review de novo. See Gordon v. Town of Rye, 162 N.H. 144, 150, 27 A.3d 644 (2011). Zoning boards of adjustment are created by statute, see RSA 673:1, IV (Supp. 2013), and have only those powers that are expressly conferred upon them by statute or are necessarily implied by those statutory grants. See Board of Water Comm'rs, Laconia Water Works v. Mooney, 139 N.H. 621, 625, 660 A.2d 1121 (1995) (explaining that "a municipality may not delegate to a municipal board more power than the municipality has" (quotation and brackets omitted)); cf. 74 Cox St. v. City of Nashua, 156 N.H. 228, 231, 931 A.2d 1194 (2007) (deciding that zoning board's power to grant or deny requests for rehearing included authority to reconsider decisions to deny rehearing). Accordingly, we begin by interpreting the relevant statutory scheme.

We are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Gordon, 162 N.H. at 150, 27 A.3d 644. When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. We interpret a statute in the context of the overall statutory scheme and not in isolation. Id.

Pursuant to RSA 674:33, a zoning board has the power to: (1) "[h]ear and decide appeals if it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of any zoning ordinance," and "reverse or affirm, wholly or in part, or ... modify the order, requirement, decision, or determination appealed from and ... make such order or decision as ought to be made and, to that end, shall have all the powers of the administrative official from whom the appeal is taken"; (2) grant variances under certain statutorily-described...